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March 15, 2012

Seeking early predictions on Southern Union (and Apprendi's future)

This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years.  SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said.  Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided.  As Scott put it, it is an "unusually difficult one to guess."

I share Professor Scott's view that predicting an outcome, or even the votes of  particular justices, in Southern Union is unusually difficult.  I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena.  And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings.  If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.

As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.

Some recent related posts:

March 15, 2012 at 12:26 PM | Permalink


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“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Other than the extra burden on the government, what exactly is bad about this statement? I'd even go so far as to remove "beyond the prescribed statutory maximum". A sentence should be based on provable facts, not speculation. There's too much room for impropriety otherwise.

Posted by: NickS | Mar 15, 2012 12:56:55 PM


Preponderance is not speculation, the government still has a burden of proof at sentencing, it's just not beyond a reasonable doubt.

Posted by: Soronel Haetir | Mar 15, 2012 2:42:51 PM

Apprendi is concerned with just one dimension of an unfolding problem; namely the fact that Apprendi committed a crime for which he was to be penalized. Penalties are fixed by the legislature before the fact at a time when the problem is not fully knowable, and imposed after the fact upon a finding of guilt by a jury.

But the problem as a whole is multidimensional. A crime is just the core part of a criminal offense (modifier-head conceptual combination); i.e., one dimension of the problem. A criminal-offense is the second dimension of this problem. Punishments are fixed after the fact when the problem becomes fully knowable, within a range that is set by the legislature before the fact. Punishments have different objectives than penalties.

By the way this problem has a third dimension; namely the company in question is at risk of committing another crime. This dimension of the problem is changeable. It is not addressed in this case.

So was the fine in this case a penalty for committing a crime? If so Apprendi applies. Or was the fine in this case a punishment for the criminal offense? If so Apprendi does not apply.

Booker recognizes that the problem is multidimensional. Clearly, unidimensional guidelines do not work; they are too simplistic, mixing apples and oranges.

Posted by: Tom McGee | Mar 15, 2012 2:51:06 PM

NickS, with all due respect, by suggesting that the language of the penalty being beyond the Blakely max being removed aligns you with Justice Breyer's misguided understanding of what Apprendi is all about. Please read Scalia's concurrence in Ring, especially the line about Scalia chiding Breyer for thinking Apprendi is about sentencing.

Apprendi was not an Eighth Amendment case, it was a Sixth Amendment case and is concerned only with who convicts defendants of a crime, a jury or a judge.


Posted by: bruce cunningham | Mar 15, 2012 6:21:19 PM

Here is a little case with an Apprendi angle (depending on what you think Apprendi is *really* about)

1. Jury convicts and judge sentences man to 34 years for swindling investors.
2. After seven years in prison man wins civil case against third party.
3. Man goes to judge and says, if use this money I just won to make my victims whole will you let me go with time served?
4. Judge: Yes, Sir. In fact, the only reason I even sentenced you to prison was because I thought you couldn't pay the money back.


To me this little trick turns what was supposed to be restitution to the victims into a criminal fine. In essence, the judge is letting him buy his way out of prison by repaying money to the victims, something he would have had to do in any event. If you think, as I do, that Southern Union should win the case then I think you'd also have to agree that the judge is violating Apprendi by letting this man out on early release.

Posted by: Daniel | Mar 15, 2012 10:48:20 PM

Dan, it is undeniable that Apprendi is based solely on the Sixth Amendment right to a jury trial of facts, other than prior convictions, that increase potential punishment for a crime. How is your scenario related to that?


Posted by: bruce cunningham | Mar 16, 2012 3:36:46 AM


The purpose of restitution is to make the victim whole. The purpose of prison or a criminal fine is to punish. The fact that the judge found was the defendants ability to repay. Creating a nexus between the defendants ability to repay and the length of his sentence is category error. As I said, it turns what was an award of restitution into a criminal fine. As far as I can tell, the law in NM doesn't even allow for a criminal fine in his case.

By the judges own words he enhanced the sentence based upon a fact not found by the jury, the defendants ability to repay. "Judge Michael Vigil told Soutar he sentenced him to 34 years behind bars *partially because he never thought victims would be paid back*."

Posted by: Daniel | Mar 16, 2012 1:03:23 PM


But the incarceral sentence that was imposed was within the range available to the judge based upon what the jury did find (at least I have to assume so). That is the only thing that Aprendi protects the convict against. If the range available to the judge based on the jury finding is 0 to 20 years, the judge can't find an additional fact and sentence to offender to 30 years. That was the sort of situation in Aprendi itself.

I can well see ability to pay restitution as being a permissible grounds for choosing a sentence within the statutory range. I can even see a presumed inability to make restitution as being a permissible ground to separate probation from a lengthy stint as the state's guest.

Posted by: Soronel Haetir | Mar 16, 2012 2:14:24 PM

Soronel, in the Apprendi Rule there is no distinction made between jail time and fines as being a penalty. As I've mentioned, there are felonies in north carolina where active time is not a possibility. In my opinion, those cases are not exempt from Apprendi. What happened in Southern Union was there was a factual dispute as to how many days the violation continued. A consequence of the determination of that dispute was the potential range of fines. A judge resolved a factual dispute which, in my opinion, increased the defendant's potential punishment.


Posted by: bruce cunningham | Mar 16, 2012 2:49:41 PM

"I can well see ability to pay restitution as being a permissible grounds for choosing a sentence within the statutory range."

East is east and west is west Bruce. The significant difference between restitution and a criminal fine is that restitution does not punish and fines do. Your argument boils down to a a legal form of nominalism. Just because the judge called it "restitution" doesn't mean that what it was. Both the judge's behavior and his verbal characterization indicate he meant "fine". How do we know that? Because the judge said he intended the money award to punish; that's fine not restitution.

Posted by: Daniel | Mar 16, 2012 4:47:58 PM


"The significant difference between restitution and a criminal fine is that restitution does not punish and fines do"

Horse hockey! Any order that picks the pocket of a citizen is a punishment!

Posted by: rodsmith | Mar 16, 2012 8:59:33 PM

"Horse hockey! Any order that picks the pocket of a citizen is a punishment!"

Horse Hockey to you too. If I steal your TV and the police capture me and give the TV back to you how is that a punishment to me? The TV was never mine to begin with. That's the essence of restitution and what separates it from punishment. You live in a bizarre world rodsmith if you think that returning property to its lawful owner is 'picking the pocket' of a thief.

Posted by: Daniel | Mar 16, 2012 9:53:23 PM

ahh but there is a big difference in you going in and proving it's YOUR tv and having some judge pull a number out of his rear!

IF on the otherhand the individual went in and submited evidence to the amount of their loss and that being returned was part of the sentnence that would be diff.

Posted by: rodsmith | Mar 17, 2012 2:16:33 AM

Restitution and fines are tactics. Tactics are used to carry out strategies; strategies in turn are used to accomplish objectives. The State must accomplish several different objectives since the system has to respond t more than one dimension of the problem. Obviously the current, oversimplified social control paradigm is wholly inadequate.

Fines may be used to penalize and/or punish, depending on the State's objectives. Restitution has nothing to do with penalizing or punishing an offender; it has a different objective and responds to different dimension of the problem.

Posted by: Tom McGee | Mar 17, 2012 5:22:03 PM

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